Public Bill Committee

[Sir Roger Gale in the Chair]

Roger Gale: Good morning. Just before we come to new clause 23, let me make it absolutely clear, in case it is not already, that this new clause relates to legal aid in so far as it relates to judicial review. So the debate is narrow. This is not an opportunity for a broad debate on legal aid.

New Clause 23  - Legal aid for judicial review

‘(1) The Secretary of State may not omit, vary, limit or change the arrangements for legal aid pursuant to section 2 or section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in so far as those changes related to legal services for judicial review.’.—(Mr Slaughter.)

Brought up, and read the First time.

Andy Slaughter: I beg to move, That the clause be read a Second time.
It is a pleasure to be here again, Sir Roger, under your chairmanship for what may be our last sitting. I know the Minister would wish to have a full discussion on legal aid, but sadly we are constrained by the terms of the new clause. However, the changes to judicial review inflicted by the Government’s proposals for legal aid are themselves a large topic. Practitioners across the piece have briefed me that the changes envisaged in regulations would be of similar weight to the proposals in part 4 of the Bill. So perhaps we could spend the same amount of time discussing this as we spent on that. But we will not, for two reasons. First, I understand there have been discussions between the usual channels. Secondly, although the new clause goes to the heart of the issue, it is more about process than the detail of the changes that are proposed.
The new clause is a necessity—we intend to push it to the vote if the Minister does not accept it—because nothing in the Bill deals with the proposals in the Government’s consultation and the proposals that are in tandem with the Bill to limit the availability of legal aid in judicial review proceedings. That seems to us to be a significant and deliberate omission. As the whole of part 4 is given over to judicial review and related matters and other parts of the Bill, such as the clauses on appeals, are generated principally by the Government’s war on judicial review, there seems no reason why these significant proposals on restriction of legal aid should not be in the Bill too.
The framework for the availability of legal aid for judicial review was decided under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. That, itself, was somewhat restricted but, in fairness to the Government, it allowed legal aid to continue for judicial review. It was one of the specified areas in which legal aid would be available. So we are dealing with a change that has been in place for only a year or two. Secondly, it is a change to a matter that was fully debated—what the changes in LASPO meant for judicial review. I know that because I debated it at the time and other members of the Committee were present. Why, when it comes to further restricting that significantly, is this being done through secondary legislation? Why is it being done through the negative procedure?
The primary objective of new clause 23 is to ensure that changes to what was set down in LASPO will be made through primary legislation. That is important of itself to allow for parliamentary debate through the stages of a Bill. It is also important because this is a tactical consideration by the Government. They know that all the proposals on judicial review will be scrutinised, not only in this House, but in the other place. They know that they suffered a large number of defeats in the other place on LASPO. It is likely that they will suffer defeats in the other place in relation to part 4, although that is not a matter for me to judge. They clearly do not wish that to be the case in relation to legal aid. The toxic combination of legal aid and judicial review is likely to excite many noble Lords. Changes are therefore being made on the sly, as it were, through the negative procedure. Even if it were appropriate to deal with the matter by regulation, it should be done through the affirmative procedure. The Government have got round that. I have corresponded with Government lawyers, and my legal advice differs from the Minister’s legal advice. We will see in due course whether the matter will be tested in court.
If the change to the ambit of judicial review is significant, which it is, it should be dealt with under section 9 of LASPO, and regulations under that section should be made by the affirmative procedure. In order to use the negative procedure, the Government say, “No, no, this is only about remuneration, therefore it can be dealt with under section 2.” We may have dealt with that ploy, however, because my right hon. Friend the Leader of the Opposition has tabled an early-day motion, which has already been signed by a large number of Members, to pray against the negative regulations and ask for a full debate. We anticipate a debate sooner or later, preferably before the regulations come into effect, but it will be in a Delegated Legislation Committee and limited to 90 minutes. Even that is not an appropriate forum, which is why it is important to debate the matter now. Let me say a few words about the substance and why such a debate is important.
The new clause would restrict the power of the Secretary of State to amend, vary or restrict by secondary legislation eligibility for legal aid for services connected with judicial review. It would make it clear that the broader power of the Secretary of State under section 2 to make provision for the arrangements governing the payment of legal aid should not be exercised in a manner inconsistent with the intention of Parliament that individuals should continue to be able to obtain legal aid for the services deemed to be in scope by LASPO. The Secretary of State proposes to use delegated powers pursuant to LASPO to remove funding for any judicial review application issued that is not granted permission by the court.
The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014, tabled in parallel to the Bill, give effect to the Government’s proposals. The regulations are scheduled to come into force on 22 April 2014. They are made pursuant to section 2 of LASPO, which gives the Secretary of State the power to make arrangements for the payment of remuneration for legal aid. Where an application for judicial review is issued, the new regulations will prohibit the Lord Chancellor from making any payment for legal aid services except in cases where permission is granted or subject to an ex gratia scheme. That is the revised methodology that the Government decided on post consultation. It is wrong that that major part of the Government’s package of proposals for reform of judicial review is subject only to secondary legislation without opportunity for full parliamentary debate.
Debate on LASPO and its remaining provision for civil legal aid, including judicial review, was lengthy and contentious. It seems remarkable that Parliament could have intended to enable the Minister to make such sweeping changes to funding without further primary legislation. The Government propose that legal aid should not be recoverable in judicial review claims except where permission is granted. Where applications are withdrawn before a permission hearing, the Legal Aid Agency will have limited discretion to make ex gratia payments in connection with work done. That means that the risk of public law litigation will be met by lawyers representing vulnerable people without other means to challenge life-changing decisions. It shows a profound misunderstanding of administrative law in practice. As the senior judiciary have themselves explained, many cases are currently settled prior to any hearing on permission. The ethical position of both solicitors and barristers who accept instructions subject to a legal aid certificate and who subsequently seek to withdraw before issue is far from clear. We heard the evidence of Nick Armstrong and Nicola Mackintosh on exactly that point. No clear provision is made to preserve funding for pre-application work, nor for interim relief. No criteria are set for the determination of ex gratia payments. Perhaps most worryingly, the ex gratia payments are to be made subject to the discretion of the Lord Chancellor with no provision for independent review or appeal. I know that during the consultation period the practitioners, other interested parties and the Ministry of Justice had some detailed discussions about that. However, the assurances that have been given have not satisfied those who deal with this area of law on a daily or weekly basis. Let me state for the Minister the outstanding considerations.
The Government made a series of commitments. First, they made a commitment on interim applications, which are designed to protect clients from irreparable damage, often in emergency circumstances. These will continue to be funded in all cases. Secondly, they made a commitment that all work prior to the issue of an application for judicial review will continue to be paid for—even though the determination of work done on an application and prior to the issue of an application remains unclear. Thirdly, in some cases, where permission is not granted, claimants will be eligible to apply for an ex gratia payment in recognition that many cases which do not proceed may secure a valuable result for the claimant in any event. Those assurances are not however currently sufficient for the following reasons.
On interim applications, new section 5A of the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 relates to an “application for judicial review”—thus, applications pursuant to part 54 of the civil procedure rules. Part 25 of the civil procedure rules governs interim applications and therefore may not be covered in new section 5A. Most applications for interim relief in judicial review are currently made as part of the wider application, pursuant to part 54—for example, the application form associated with judicial review asks claimants to indicate whether they are seeking interim relief. Therefore, it is unclear whether all applications for interim relief are intended to be fundable and whether, in future, all applications for such relief must be made independently pursuant to a part 25 application.
On the issue of preparatory and pre-issue work, new section 5A applies when an application for judicial review is issued. Where applicable, the Lord Chancellor 
“must not pay remuneration for civil legal services consisting of making that application”.
It appears clear that where proceedings are not issued, section 5A will not apply, so work will be funded by legal aid, allowing for correspondence between a claimant and a public body and other investigative work, for example. However, it is less clear what is intended when a claim is issued. What work will be considered as services “consisting of making that application”? This is clearly ambiguous and, without clarity, will compound the chilling effect of these measures. At best, this could lead to significant disputes between the Legal Aid Agency and providers as it is determined what work can and cannot be done.
On the ex gratia scheme, the regulations provide very little detail and the Lord Chancellor is granted significant discretion as to when payment may be made if a claim ends before permission is granted. No payment is permitted when permission is refused, regardless of whether the reason for refusal is entirely unpredictable or outside the control of the claimant or his adviser—for example, late disclosure or a change in the practice of the respondent decision maker. Importantly, the guidance includes the discretion for the Lord Chancellor to consider the reason why a case may have settled and to second-guess the facts that a provider ought to have known at the time of issue.
These limitations aside, the regulations provide that there will be no route of appeal from a determination not to pay. No consideration beyond the Lord Chancellor—that is, the Legal Aid Agency—will be permitted. Consideration by the independent funding adjudicator appears to have been precluded.
I want to put all that on the record. I hope that the Minister is either in a position to respond today, because these arguments are familiar, or will respond in writing later. If the Government persist in dealing with this matter by regulation, which we say is wrong, I hope that they will look again at those regulations to remove the ambiguity, lack of clarity and poor drafting. There is an unclear purpose in the regulations as currently drafted. I am sure that the Minister has seen the Secondary Legislation Scrutiny Committee report on those regulations. It is one of the most damning reports that I have seen from that Committee. It makes exactly these points. It says that there is huge uncertainty among practitioners on what will and will not be fundable now, because of the ambiguities. The Government seem totally confused about what the effect will be. Will they remove legal aid from 20% of cases or 69% of cases? Both figures are given. What, if any, saving will there be? The Government’s estimate is not a large saving in terms of the overall budget—somewhere between £1 million and £3 million—but it must be doubted whether even that is likely to be made or whether, as the Committee says:
“savings in this area will simply transfer costs to another area.”
The conclusion to the report says:
“In this very sensitive area MOJ has made a poor job of explaining how the revised payment system will function. We note with concern that there are aspects of the Regulations that are not clear to organisations that deal routinely with legal matters. It therefore seems likely that providers who are uncertain about whether they will get paid or not for their work will not put themselves forward to test the grey areas of the law. As a minimum the MOJ should, before the legislation comes into effect, provide urgent clarification of exactly what work will, and will not, be paid for and how the Legal Aid Agency will exercise its discretion over payment. It would be preferable to have a clearer definition set out in the Regulations themselves. We therefore draw the Regulations to the attention of the House as a matter of legal importance and public policy interest.”
The Committee adopts or makes separately a number of the points that I have previously read out. It appears that the Minister is confused over this matter. I noticed that when the hon. Member for Brent Central (Sarah Teather) asked him at the most recent Justice questions:
“In their response to the JCHR report on legal aid reform, the Government agreed to exempt sections 17 and 20 of the Children Act 1989 from the residence test. However, that exemption will not include judicial review, despite the fact that it is often the only remedy available, thereby apparently undermining the exemption that has been made. Will the Minister look closely at expanding the exemption to include judicial review?”
he replied:
“The Criminal Justice and Courts Bill, which is in Committee, will look at judicial review in considerable detail.”—[Official Report, 18 March 2014; Vol. 577, c. 625.]
We have not looked at the interrelation between legal aid and judicial review, save in the context of this clause. A number of organisations that deal with vulnerable and excluded groups, such as the Howard League, have pointed out, for example, that:
“The Lord Chancellor has relied on the availability of legal aid for judicial review to justify the removal of legal aid for prisoners. If the changes to costs protection and rules on interveners proposed in the Criminal Justice and Courts Bill 2014 are passed, individuals are unlikely to get their issues solved through public interest judicial reviews brought by civil society organisations.”
In other words, it was incumbent on the Government to answer these questions clearly and in the context of what has happened to judicial review as a whole.
The view shared by the judiciary and practitioners is that the effect and, I would say, the intent of this measure is to have what is described as a chilling effect on the availability of legal aid. The combination of simply withdrawing legal aid for the permission stage in many cases, and the lack of clarity as to when legal aid will be available is simply not good enough. The net effect will be that practitioners are put in a compromised position, or they will not know whether the work they are doing is likely to be claimable, or whether payment simply will not be possible because funds are not available for matters to go forward. I have had representations from the Howard League, from Travellers’ rights organisations, and from homelessness organisations that are particularly concerned about the interim relief point, for example, in cases where a homelessness decision is being challenged. In those cases, what arrangements will be made for the excluded person while proceedings are determined? The Government have not satisfied anyone, as far as I can see, in relation to those points.
I am content to leave the matter there. I said that I would keep my comments to 20 minutes, and I believe that I have done so.

Shailesh Vara: I thank the hon. Gentleman for his comments on the new clause. I hope to deal with all the points he made during my speech, but I can deal with a couple of them at the outset. The hon. Gentleman referred to the Secondary Legislation Scrutiny Committee’s report, and I can assure him that we are aware of it and looking at it very carefully. He also referred to the possible chilling effect on access to justice. We do not accept that providers will leave the market, leading to denial of access to justice for clients who may have strong cases. In fact, LASPO places an explicit duty on the Lord Chancellor to ensure the provision of legal aid specified in the Act, which means in practice that remuneration arrangements must ensure the sustainability of services.
Providers must scrutinise claims carefully before applying to the Legal Aid Agency for funding. Where the case is meritorious, the client will still be represented and the provider will be paid, either through a costs order from the defendant or at legal aid rates, because the case is granted permission or because the case concludes prior to permission and the Legal Aid Agency exercises its discretion in the provider’s favour. We are therefore confident that the regulations are appropriately made under section 2 of LASPO.
The purpose of the new clause appears to be twofold. First, it would prevent any changes being made by secondary legislation to arrangements for the provision of legal aid, including remuneration regulations, in so far as they touch on judicial review. Secondly, it would prevent the Lord Chancellor from bringing forward secondary legislation that would change the extent to which civil legal aid is available for judicial review. By not allowing arrangements under section 2 of LASPO to be omitted, varied, limited or changed by secondary legislation, the new clause would prevent any alteration to remuneration regulations in so far as they related to judicial review without primary legislation. For example, if new clause was accepted, the changes we are introducing to remuneration for judicial review work could be reversed only by primary legislation. That may not be the hon. Gentleman’s intention, but it highlights the need to take greater care when scrutinising the potential unintended consequences of new clauses.
The new clause would also prevent changes being made to scope, but specifically and only in the case of civil legal aid for judicial review, not for other matters. It would preserve the present availability of legal aid for judicial review, described in paragraph 19 of part 1 of schedule 1 to LASPO. Any variation, including expansion in the availability of civil legal services for judicial review listed in the schedule, could in future be made only by way of primary legislation. It is important to make civil legal aid available for judicial review, but I do not agree that the new clause is necessary or appropriate.

Andy Slaughter: The Minister is giving a technical answer, but will he address the substantive point? There is a close interrelationship between legal aid and judicial review and between the proposals in the regulations and part 4 of the Bill. Given the fact that a whole part of the Bill is given over to the changes in legal aid, why are the provisions on changes to the legal aid system not included, particularly as the Minister appeared to concede that they should in his comments to the hon. Member for Brent Central?

Shailesh Vara: In my response to the hon. Member for Brent Central, I said that we would be considering judicial review; I did not go into the details. Clearly, the subject of judicial review and its interaction with legal aid could occupy a full Committee, all the sessions that we have had and many more put together. We are dealing with specifics, and that is what I will concentrate on.
The new clause would constrain any further variation or omission, including expansion of the services listed. It would constrain the Lord Chancellor and Parliament from making further revisions to the schedule to reflect the Government’s priorities, and it would constrain the ability to amend the schedule to ensure that it remains up to date in consequence of changes made elsewhere. Requiring any future changes to be made only by way of primary legislation is simply unnecessary. Any order made under section 9 is subject to the affirmative procedure, ensuring that both Houses are afforded adequate opportunity to scrutinise changes to the schedule.
I hope that in explaining the effect of the new clause, I have addressed the concerns that lay behind it. First, although the Government agree that anyone eligible for legal aid should be able to access relevant services, that need is already met by section 1 of LASPO. Fixing in stone existing arrangements, including remuneration, is unnecessary, inappropriate and would be likely to lead to unintended consequences. Secondly, the Government have no plans to change the scope of civil legal aid for judicial review, but it is important that the power to make any such changes in future, including the potential expansion of the services listed, is not unnecessarily constrained. I accept that the hon. Member for Hammersmith has strong views, but I hope that I have been able to give him some comfort. I ask him to withdraw the new clause.

Andy Slaughter: I am afraid that the Minister has not given me any comfort about these matters, except that I am glad that the Government are looking at the report of the Secondary Legislation Scrutiny Committee. I know that the Minister will take these matters seriously, but I have marked in the report at least half a dozen separate criticisms of the Government’s approach, which I think is unprecedented.
I mentioned the lack of clarity and certainty about what the Government seek to achieve in this area, as well as the uncertainty about the amount of savings. The Committee’s request, like mine, is that the measure should be set in the wider context of the Bill. There is also the fact that these are public policy issues and, indeed, the fact that, notwithstanding what the Minister just said, the Government may have approached this under the wrong section of LASPO. Then there is the likely effect that the changes will have on the willingness of public law practitioners to undertake this type of work. All of those matters are, as the Minister put it, unintended consequences. I hope that if those are the consequences, they are indeed unintended, but for that reason alone he needs to look again.
I hope that the Minister will also reflect on the three specific points I made on interim relief for preparatory and pre-issue work and on the ex gratia scheme. I appreciate that the Government made some attempt to compromise in their response published in February. However, we say that, first, that did not go far enough; secondly, it was confused; and thirdly, the position is still not clear, particularly on interim relief. The Government assert that what practitioners request is the case, but that is not what the regulations say at present. The confusion between parts 54 and 25 needs to be addressed. The draft regulations do not include any reference to payment for work carried out on an application for interim relief. That must be included.
We will put the new clause to the vote, although I do not expect to win, because it is important that a marker is laid down that this is a serious matter. If the Minister looks at this before the debate on the regulations takes place, we will at least have the advantage of being able to have a second debate, and no doubt there will also be debates in the other place, so there are opportunities to get this right. I use the word “right” not in the sense that we will simply sweep away these changes, which is what I would like, but in the sense that at least what the Government say they wish to achieve with these regulations will be achieved.

Question put, That the clause be read a Second time.

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Clause 58  - Power to make consequential and supplementary provision etc

Question proposed,That the clause stand part of the Bill.

Andy Slaughter: I can be brief on this matter. It would be wise to oppose clause stand part because this is a Henry VIII clause, red in tooth and claw. It states:
“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act… The regulations may, in particular, amend, repeal or revoke legislation… Regulations under this section are to be made by statutory instrument.”
That is lazy legislating: the Government are saying, “Right, anything that we feel like doing in the future we will do in our own good time,” with all the advantages to the Government I just set out in relation to new clause 23. Significant matters will be shuffled off to be dealt with as delegated legislation, when they should be given a full opportunity for parliamentary debate.
The Government are not alone in using such methods. I am sure that previous Governments have done so as well—[Hon. Members: “Ah!] I did not say of which party, just previous Governments. It is not a habit to be encouraged. I would like to see how the Minister justifies his broad sweeping, lazy provision. We will vote against the clause.

Shailesh Vara: The clause is not lazy, but absolutely necessary. It provides for the Secretary of State, by order, to make consequential, supplementary, incidental, transitional, transitory or saving provisions in relation to any provision in the Bill. Such provision is often needed to give full effect to the provisions of a Bill; in this case, for example, in relation to sentencing and the new procedure for trial by single justice, where the relevant legislative framework is complex. It is also used to make changes to related secondary legislation. The consequence of not being able to make consequential, supplementary or incidental provision could be to inhibit the proper operation of the new clauses. On occasions, for example, in relation to proper sentence calculation, that could even be to the detriment of an individual.
Some concerns have been expressed about the drafting of the power. Let me assure members of the Committee that the drafting is in line with that used in the drafting of many other Bills. The use of the power is limited to making such provision as is necessary to implement the Bill effectively. As the hon. Gentleman has said, it is not new; it has been used by Governments on both sides of the political divide.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 9, Noes 6.

Question accordingly agreed to.

Clause 58 ordered to stand part of the Bill.

Clause 59 ordered to stand part of the Bill.

Clause 60  - Commencement

Amendment made: 170, in clause60,page59,line27,at end insert—
‘( ) An order under this section bringing into force section (Drugs for which prisoners etc may be tested) may appoint different days for different areas.’.

This amendment enables the Secretary of State to bring into force the new clause inserted by amendment NC21 on different days for different areas in England and Wales.—(Mr Vara.)

Clause 60, as amended, ordered to stand part of the Bill.

Clauses 61 to 63 ordered to stand part of the Bill.

Bill, as amended, to be reported.

Roger Gale: Before we leave, I want to thank hon. Members for the courteous manner in which they have conducted the debates. I also thank the officers of the House, without whom our task would be impossible.

Committee rose.
Written evidence reported to the House
CJC 37 Bar Council, supplementary evidence
CJC 38 Jamie Grace
CJC 39 The Law Society, supplementary evidence
CJC 40 Criminal Bar Association
CJC 41 BritCits
CJC 42 BBC, Guardian News & Media Limited, Independent Print Limited, Express Newspapers, ITN, Channel 4 Television Corporation, Telegraph Media Group Limited, Associated Newspapers Limited and Times Newspapers Limited
CJC 43 Terence Ewing
CJC 44 Mrs Sue Braithwaite and Mrs Mandy Stock